In a petition filed under Section 125 of the Cr.P.C by the wife of the petitioner herein as MC.No.163 of 2017 on the file of the Family Court, Irinjalakuda, the petitioner was ordered to pay a sum of Rs.3,500/- towards interim maintenance. The said order is under challenge in this petition filed under Article 227 of the Constitution of India.

2. The respondent herein, who is the wife of the petitioner, had contended that the petitioner is a software professional running his own consultancy company at Bangalore and that he was having a monthly income of more than Rs.1 Lakh. She claimed a sum of Rs.20,000/- per month as maintenance. The petitioner filed objection refuting the assertions. He contended that he is suffering from uncontrolled Diabetes and from multiple end organ diseases affecting the nerves and kidney. He further contended that he is totally immobile as he sustains pathological bone fractures, if he makes the slightest of movements. He also contended that his wife is working as a lecturer and is earning not less than Rs.35,000/- per mensem. He further submitted that she cannot be heard to contend that she is unable to maintain herself.

3. The Family Court holding that it was the statutory obligation of the husband to provide reasonable amount for the maintenance of his wife, ordered the petitioner to pay maintenance at the rate of Rs.3,500/- per mensem.

4. Heard the learned counsel appearing for the petitioner.

Though notice was served on the respondent, she has not appeared.

5. Assailing the order of the Family Court, it was contended by the learned counsel appearing for the petitioner that though one of the points framed for consideration by the Family Court was whether the respondent is having the financial capacity to provide the amount as prayed for, the court below has not endeavoured to evaluate the crippling ailments suffered by the petitioner. He has produced Exhibits-P8 to P10 medical records to appraise this Court that his physical condition is very bad and dismal and he is not even in a position to move around. According to the learned counsel, the petitioner is fighting for his life and being a person bereft of any means, he is not in a position to pay any amount by way of maintenance to the respondent.

6. I have considered the submissions advanced and have perused the materials on record.

7. While ordering the petitioner to pay maintenance, it appears that the Family Court has not taken note of his contention that he is virtually fighting for his life. Exhibit-P8 would show that the petitioner is effected by pathological comminuted fracture of tibia and cellulitis of his right leg due to uncontrolled diabetes. The said record would also show that he has acute kidney injury and advanced kidney disease secondary to diabetes. It shows that he has bilateral pedal edema as well. He has also developed diabetic retinopathy and nephropathy at the age of 43 years. The contention of the learned counsel that the petitioner is totally immobile and not in a position to work and earn income cannot be dismissed as such. None of these aspects were considered by the court below while passing the impugned order. In view of the above, the order passed by the court below cannot be sustained. I set it aside.

8. The court below is directed to take evidence as per law and pass final orders in an expeditious manner.

This petition is disposed of with the above direction.

Sd/- RAJA VIJAYARAGHAVAN V., IAP JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF MP 35/17 IN MC 163/2017

FILED BEFORE THE FAMILY COURT IRINJALAKUDA.

EXHIBIT P2 TRUE COPY OF THE MEDICAL CERTIFICATE PRODUCED.

EXHIBIT P3 TRUE COPY OF THE LIST OF WITNESSES AND THE PETITION FILED BEFORE THE FAMILY COURT AT IRINJALAKUDA.

EXHIBIT P4 TRUE COPY OF OBJECTIONS FILED TO PETITION FOR INTERIM MAINTENANCE.

EXHIBIT P5 TRUE COPY OF THE ACCOUNT